Charges dropped—”making available” now focus of Pirate Bay trial

Nothing is ever dull at the "spectrial." On day two, Pirate Bay prosecutor …

So far, most of the "spectacle" in the Pirate Bay "spectrial" has come from the pirates—the pirate bus parked outside the court, the activists showing up with Pirate Party megaphones, the tweets from the courtroom. But on day two of the trial, the prosecution dropped a spectacle bomb of its own by dismissing half of the charges.

According to Sweden's The Local newspaper, prosecutor Hakan Roswall this morning arrived in court and asked to dismiss "complicity in the production of copyrighted material" from the charges. The remaining charge against the four defendants is "complicity to make (copyrighted material) available."

All charges based on copying files are now out, and the focus is solely on how The Pirate Bay made it simple for others to make copyrighted material available. As Swedish Pirate Party leader Richard Falkvinge noted on Twitter, the case now turns on "the Jammie Thomas Q[uestion]: Is making available enough to breach copyright?"

That case, heard in Minnesota, is the only one of the RIAA's file-sharing lawsuits to make it to trial and a verdict—and the judge eventually set the verdict aside over doubts that making a file available to others infringed on copyright unless an actual distribution could be shown.

The Pirate Bay backers have always claimed that their site, which does not directly host files, is the same as any user-generated content site—in fact, compared to something like YouTube which actually hosts the content, The Pirate Bay has even less of a connection to the material in question.

The music industry argues that this is grade-A prime bunkum, and that nearly everything available on the site infringes copyright and has led to untold wealth and riches for the site's backers. (Similar claims have been made against YouTube, including a $1 billion lawsuit from Viacom that alleges the same basic claims.)

When a Swedish newspaper columnist asked Roswall during a court break about the change in charges, the prosecutor replied, "I have many other things to think about now, you understand."

Roswall spent much of his time today trolling through old bank statements and e-mails in an attempt to show that the site was really just a money-making operation for the pirates; Pirate Bay leaders have always insisted (both to Ars and other outlets) that they just make enough to power the servers and pay some bills.

Content owners, who are watching the trial closely, said that the change was really just about "simplification." "It's a largely technical issue that changes nothing in terms of our compensation claims and has no bearing whatsoever on the main case against The Pirate Bay," said music industry legal consultant Peter Danowsky in a statement. "In fact it simplifies the prosecutor's case by allowing him to focus on the main issue, which is the making available of copyrighted works."

When contacted by Ars Technica, Danowsky said that Sweden's copyright act does not require actual distributions to take place. "A work is made available as soon as it is for sale or for hire or given away," he said. "This does not have to involve any actual transfer of the work. And the right to control availability is protected by the Act, so making available can be in violation of copyright even though no actual distribution has taken place."

Today's change in charges led Falkvinge, who has no official connection to The Pirate Bay, to wonder about prosecutorial incompetence. "The pirates have won half of the indictment after one and half days," he said, "before the defense even had time to present its case—I'm surprised at how Roswell [an intentional misspelling, since no one "seems to understand or know what is really there"] has done such a poor job for three years. Three years! How can one prepare anything in three years and be forced to abandon half of it after twelve hours?"

Or, as defendant Peter Sunde succinctly put it in a tweet this morning, "EPIC WINNING LOL."

Making available? Hmm, not sure that one will stand either unless one's narrow interpretation of making available fits the bill. Of course, peer to peer applications work on the premise that every connected client reports what is accessible (available) to a centralized server, but that server itself contains no copyright goods.

With this in mind, I would think the best logical conclusion is that Pirate Bay and other notorious P2P servers serving clients are guilty by association at best. But should a P2P server site be made to police its users? Analogy ...

I use a train station paid-to-use locker system as a drop off location for exchanging goods I have no right to sell. Is the train station held accountable? Is the train station staff being enforced to routinely check the nature of the contents within each locker and determine the legality therein?

Originally posted by superslav223:Your analogy doesn't work because Pirate Bay isn't providing general use digital storage. They provide links to pirated software. Their website isn't used for anything else.

They don't provide links for pirated softwares, they provide links for .torrent files, which is not the same at all. It is like saying that's a phone directory is illegal because some people used it to meet and do some kind of illegal act together.

I have never understood how making something available is a criminal act. If I go to a public library and remove a copyrighted book from the shelf and then illegally Xerox a copy. Is the library responsible because it made it available?

In the US the Pirate bay should fall under the same rules as youtube. They should be responsible for taking down copy righted material after being notified under the DMCA. However they are not in the US....

Your analogy doesn't work because Pirate Bay isn't providing general use digital storage. They provide links to pirated software. Their website isn't used for anything else.

STOP. Put down the RIAA Kool Aid...

The Pirate Bay, or any other kind of P2P technology is neutral. TPB are not responsible for putting any infringing content on there. It's true that they don't discourage it either, but it's a neutral platform.

Anyone can use it for *legal* content. There is plenty of that there. These include CC-licensed movies and music, as well as free software including Linux distros, etc. When Trent Reznor decided to release Ghosts and distribute it to as many people as possible, guess where he put it? Are you going to claim that Reznor isn't allowed to do that, or admit that you lied?

If you want to fight "piracy", you might as well start with facts, not exaggerations from people who don't want to enter the 21st century because they can't "control" media the way they used to...

That is so funny. They're trying to get them on "availability"? How the hell do they suppose to do that? Remember when someone wore a Metallica TShirt to some Music Awards thing... and Lars was RIGHT THERE in the audience when one said to the wearer of the shirt, "Dude, I like your shirt." as to which the reply was, "Thanks. I borrowed it from a friend."

Does that not show that someone owning the album and making it "available" to friends almost constitutes the same thing. The friend could have borrowed it and ripped it to their computer to use in their own MP3 player. And NOBODY profits, except the record label from the original sale of the album.

So all I have to say to the record labels making MILLIONS UPON MILLIONS while the rest of the world goes the way of a stagnant economy: PISS OFF MOTHER F'ERS!

Originally posted by matt w:In the US the Pirate bay should fall under the same rules as youtube. They should be responsible for taking down copy righted material after being notified under the DMCA. However they are not in the US....

The whole problem is that they don't host any kind of copyrighted material (well, i guess the torrents are by default copyrighted by the first seeder, but this is not the point here). In the US, they don't fall under the DMCA, as all they do is providing a file which contains a direction on how to grab another file. It is like providing a service which host pictures of streets with a huge hint of what you can find there.

Edit: just wanted to add the point it is a hosting service for torrents, and they don't put them there themself.

Like so many times in the past the law is acting in a backwords fashion. Still trying to go after the downloader instead of the original uploader. Why? simple the RIAA,MPAA and any sub-organization that is related in anyway to any of them are not intelligent enough to find the original source.

Cops are no different. If an CHP see a car speeding then a person on a bicycle wearing a headset they almost always go after the person wearing the headset on bike. It is an easier catch.

Just because people get curious from time to time and download a movie or two does not make them the criminal mastermind nor should they be charged as such. the original uploader broke the encryption/security protocols he/she converted it to viable formate and he/she is the one responsible for breaking the law.

It still exists even if you attempt to stop the Internet/Electronic form. There are so many software decryption algorithms out there that people STILL have the ability to rent a DVD from Netflix or Blockbuster remove the security and create a copy WITHOUT bittorrent.

Matter of fact it is BECAUSE so much focus has been put on bit torrent that these relatively cheap software packages are thriving and getting better. Just ask the makers of SlySoft.

I find it ironic that many in these forums are trying to prosecute and they are just as guilty of doing the same thing just not in bit torrent form. Hypocrates!

How does "assisting in making available" constitute copyright infringement? By that logic, lets shut down the internets because I could use Google to exclusively search for torrent files linking to copyrighted material.

In the US the Pirate bay should fall under the same rules as youtube. They should be responsible for taking down copy righted material after being notified under the DMCA. However they are not in the US....

Sigh. It's not the same thing at all. If YouTube is hosting a copyright infringing video, they are storing a copy of the infringing video on their server. When you access the video, YouTube itself is sending you a copy of the violating content. Since YouTube has no authorization to copy that protected content, YouTube's actions in and of itself is violating the copyright holder's exclusive right. In the case of the Pirate Bay, the Pirate Bay is not holding a copy of the offending content, nor is it sending you a copy of it. All that the Bay is doing is sending you a file which says "Hey, if you want to grab this content you can find it stored over there on those other machines." The Pirate Bay doesn't have a copy of the content, it doesn't send you a copy of the content, and it has no way of even knowing what the content actually is. There is no copyrighted material on the Pirate Bay to be taken down.

Even if you buy the ridiculous theory that copyrights violations are a form of theft, etc., then at absolute worst, the Pirate Bay is guilty of saying "Hey, if you want to buy stolen goods, I know the pawn shop at 123 Anystreet sells it." They aren't the pawn shop, they didn't steal the goods, they didn't buy them after they're stolen. They're just telling you where the pawn shop that did buy it is located. In this contorted and highly illogical viewpoint, a DMCA takedown notice says "Hey, those goods are stolen! Quit selling them!" But since the Pirate Bay doesn't sell any goods, it's silly to tell them to quit selling them.

Originally posted by theseum:Has everybody completely forgotten that tpb runs a tracker in addition to their torrent search?

Even so, the tracker is basically a way for 2 computers to communicate and exchange data. It is the same as holding a phone company responsible if 2 people give themselves a meeting to exchange the data hand by hand.And even in this case, the phone company is even more responsible, as the tracker keep track of who have something, not what is exchanged between 2 persons. The tracker never see the file itself.At no time, the tracker, the search engine, or any other webservices at TPB see the copyrighted file. All they see is a .torrent file with some name on it.

TommyBoyz8, there are so many errors in logic in your post I barely know where to start. Your T-shirt analogy is deeply flawed because borrowing a physical object is not illegal. If a second (and third, .... and 10,000th) t-shirt was made by sending the exact same design to a T-shirt factory that would be infringement.

quote:

Does that not show that someone owning the album and making it "available" to friends almost constitutes the same thing?

Making your physical copy of an album available to friends is legal. By giving your album to a friend you are relinquishing ownership of it (temporarily, unless they are perma-borrowers). Allowing your friends to copy that album however, retains your own ownership while creating a new owner. Do you really not see the difference?

quote:

So all I have to say to the record labels making MILLIONS UPON MILLIONS while the rest of the world goes the way of a stagnant economy: PISS OFF MOTHER F'ERS!

This is just anger. Sure, blame record companies for making money in a shitty economy. Who else is bad for making money in a shitty economy? Google? They make MILLIONS UPON MILLIONS while the rest of the world goes the way of a stagnant economy too.

The Pirate Bay, or any other kind of P2P technology is neutral. TPB are not responsible for putting any infringing content on there. It's true that they don't discourage it either, but it's a neutral platform.

Buddy, The Pirate Bay has always encouraged people to "stick it to the man," and by its very name, is out to help people pirate stuff. They most certainly are not neutral.

If I go to the public library, (which I have) and use the provided card file to find a book, (I have done this also) then take that book from the shelf and use the copier, (also conveniently provided by the library) to make copies from the illustrations in the book, (I plead the fifth) which I then frame and hang on my wall as art, (I am still pleading the fifth), is the library responsible for my, (alleged) copy write infringement?

The library, much like the VCR, the tape deck, the technology of bittorrent, youtube, google, and all the other analogies trotted out to defend TPB has significant LEGAL uses.

A truly proper analogy would be a "LIBRARY" that calls itself "Free Books FTW", lets you come in and "borrow" a book, provides a free copier and paper, but does not allow you to read the book there, or take the book out of the library (thus preventing others from using it simultaneously.) A tortured "analogy" but analogies always suck for this issue.

Originally posted by Zakharov:The library, much like the VCR, the tape deck, the technology of bittorrent, youtube, google, and all the other analogies trotted out to defend TPB has significant LEGAL uses.

A truly proper analogy would be a "LIBRARY" that calls itself "Free Books FTW", lets you come in and "borrow" a book, provides a free copier and paper, but does not allow you to read the book there, or take the book out of the library (thus preventing others from using it simultaneously.) A tortured "analogy" but analogies always suck for this issue.

The analogy is nearly correct. The library "Free Books FTW" don't provide you with actual books, but with the address of people who have the book, and an address to a copy machine. It just keep a huge listing of all the address, and this is the only thing you can borrow out of this library.What you do with the addresses once you borrowed it is not of their concern anymore, as they are just pointing somewhere you can maybe get what you are looking for, or not, or you may don't go to the addresses at all. (More like a knife seller don't have to check you are not using your knife to kill anyone).

The PB kids claim that Swedish law requires something more "active" in terms of sharing before liability attaches at all. See, the first clip where the dude is wedded to his laptop That would seem to make sense if this case were being tried in the United States, where 1st Amendment protections would prevent censorship of anything with even a tiny bit of high-value speech content - even a thumbs up, thumbs down link review is journalistic. The irony there is, of course, that the people going after PB are some of the most prolific producers of high-value speech. But that's all moot because it's Swedish and international law in question.

That is true. And maybe that is what will finally take the Pirates down.

But it seems to me we are splitting legal hairs here. Copy write laws are pretty tough to apply in many cases. If you decide a library has a valid purpose other than copy write infringement, does that make the infringement OK as long as it is done in a library? Or it is OK if determined that they do not make a profit? Is non-profit copy write infringement OK?

Teachers all over this country copy text and graphics from books to distribute to their students because the school cannot afford to buy enough textbooks. (Perhaps they spent their money on new bleachers for the football stadium. Who knows for sure?) For whatever reason, is it legal? No, but it is also largely ignored because the school has good intentions and has not profited to any great degree. (Or perhaps it is because book publishers are not as rich and powerful as the music industry.)

In the end, even if they succeed in stopping the Pirates, there will always be others. And perhaps they will come back in the guise of ".torrent libraries" or perhaps an "educational resource" to get around the RIAA.

I see this largely outside the realm of most of us. On one hand the RIAA would prefer to control all access to music by any means, (to the point of arguing that you never actually own the media or files you purchase, you only lease them) to the pirates that argue that if you create something and put it on the market then all use is fair, regardless; and no one should limit your access to it.

I believe this hold debate originates from the total lack of understanding the technology by the people calling the shots (i.e. lawyers)

If it's not Big Content accusing P2P trackers of copyright infringement it's Audio Book producers condemning the Kindle 2's Text-to-Speech feature because they don't have the right to distribute audio.

You have to look at the facts, regardless of what you think TPB is or isn't doing, the technology they service is clear cut and transparent (they don't call it a protocol for nothing). If they are guilty of anything is facilitating the use of the P2P protocol.

Even if they do shut down TPB, do you think Big Content will be able to shut down P2P and torrenting? Do you think the tech community will stand for it? if it ever comes down to it, then I firmly believe that Big Content loosing control over their precious products will just be collateral damage, pushing the boundaries of technology and not stymieing it should be more important then artificially protecting a dying business model through regulation.

(More like a knife seller don't have to check you are not using your knife to kill anyone).

I accept and understand the distinction you are making ProfMobius. Everyone who thinks TPB is doing something wrong understands this distinction as well. We simply do not see any significant alternative uses beyond facilitating copyright infringement from TPB.

Knives have other uses beyond killing people. Hunting, eating, preparing food, throwing for fun, collecting etc. Please consider assault weapons. These are weapons which are generally considered to have ONLY one purpose, which is to kill people in an offensive manner. They are not used for hunting, they cannot reasonably be carried for self defense due to their size. They are an offensive weapon.

Guns, in general, are legal in most countries because but assault rifles are not. In the same way TPB has only one purpose, which is (as you pointed out above) to give people all the information and necessary tools to violate copyright.

I think that by doing so, TPB is collaborating with the end user, the actual pirate. You do not. The difference is irreconcilable.

Say a man walks up to you on the street and asks you where a gun shop is. You give him directions and an address. He goes, steals a gun, and goes on a shooting spree. Are you an accessory to this crime because you gave him directions to the gun shop?

And those of you who are implying that the name of the website shows that they are obviously doing illegal things may want to go read up on the meaning behind the site name.

Guns, in general, are legal in most countries because but assault rifles are not. In the same way TPB has only one purpose, which is (as you pointed out above) to give people all the information and necessary tools to violate copyright.

_________

That is incorrect. They do not have one purpose. I'd like to see people make a list of things that are available on torrents that are 100% legal. You'd see that there are massive amounts. Things such as games. Many game producers use torrents as viable means of distributing their large (over 1gig) game files because it doesn't bog down their download servers. Many musicians use torrents to put their music out into the world because they are not famous and do not have industry backing. There is nothing illegal about these. But because of the RIAA etc, .torrent files have been completely associated with illegal files and are therefor a plague upon the internets. I've had large files of photos from family trips that I didn't want to waste time hosting them up on some website (i.e. Photobucket), but wanted to send to family and friends. So I made up a uploaded them in a torrent file and it was easy as that. Stop associating .torrent with copyright infringement. It does a great injustice to those who actually know what it is.

Again Mortus--I have other uses in life beyond pointing killers to gun shops. If my sole purpose in life was to stand somewhere, giving out information on how to illegally obtain guns with ease and instructions on how to kill people without getting caught, then would you have an issue with me?

I have no issues with torrents. I download WoW updates over torrents and other legal software over torrents. I have an issue with a website that hosts almost solely .torrent files for copyrighted material, and whose sole reputation is as a place to find such .torrent files.

(More like a knife seller don't have to check you are not using your knife to kill anyone).

I accept and understand the distinction you are making ProfMobius. Everyone who thinks TPB is doing something wrong understands this distinction as well. We simply do not see any significant alternative uses beyond facilitating copyright infringement from TPB.

Knives have other uses beyond killing people. Hunting, eating, preparing food, throwing for fun, collecting etc. Please consider assault weapons. These are weapons which are generally considered to have ONLY one purpose, which is to kill people in an offensive manner. They are not used for hunting, they cannot reasonably be carried for self defense due to their size. They are an offensive weapon.

Guns, in general, are legal in most countries because but assault rifles are not. In the same way TPB has only one purpose, which is (as you pointed out above) to give people all the information and necessary tools to violate copyright.

I think that by doing so, TPB is collaborating with the end user, the actual pirate. You do not. The difference is irreconcilable.

TPB is a tracker, with free posting. I use it to grab linux isos. This is a legal usage of the service. You also have other legal usage of the service. TPB give all the informations necessary to share data at a high rate, but have nothing to do with what is shared. The name & the general stand of the owners have nothing to do with the underlying technology, which is torrent, and not illegal.As for weapons, most country don't make them legal (try to get a gun in Europe, beside a hunting gun) as the main goal of a gun is to hurt things (which is a usual side effect of defending yourself with a gun).

Thanks, I know what torrents are. Putting a tiny minority of .torrent files that point to legal downloads into a sea of .torrent files that point to copyrighted material does not constitute alternative uses. Plenty of sites host .torrent files. Perhaps you would like to tell me what distinguishes TPB from those sites? Where does TPB get its notoriety from since we're playing dumb here?

Thanks, I know what torrents are. Putting a tiny minority of .torrent files that point to legal downloads into a sea of .torrent files that point to copyrighted material does not constitute alternative uses. Plenty of sites host .torrent files. Perhaps you would like to tell me what distinguishes TPB from those sites? Where does TPB get it's notoriety from since we're playing dumb here?_________

The same reason Demonoid became so huge. They provided a better resource for searching more torrents than the other guys. Although to be fair, Demonoid is also popular because they offer private trackers.

So if I set up a coffee bar and people came to the coffee bar and swapped illegally copied software would I be breaking the law because piracy happened there?

I don't think so, but that's not a good analogy, is it?

How about these modifications (all of which TPB does) :

I name my coffee bar "The Pirate Coffee Bar" and advertise as "the place to swap your pirated software!" (Sure, this might be a way to attract police or other unwanted attention, but I'm still not pirating myself, I'm just saying that I'm not going to prevent people who are here (paying or not: they are NOT customers necessarily) from doing so.)

I provide a list of available software, so that people can know what software is available for piracy. Once again, I don't supply anything or pirate anything, I just provide a list and searching tools.

I provide a list of "people" who claim to have specific pieces of pirated software. I don't validate those claims, I just point people in the right direction of the room when asked where one could obtain a specific product.

I hope TPB stays around because I think that it would set a dangerous precedent to make such a change: why should anyone but an officer of the court be REQUIRED to enforce the law?

Should I go to jail if I hear (I don't know, I don't participate) that my neighbor is selling or smoking pot? What if I set up a system where traffickers could post their phone numbers if they wanted to sell something: why should I be punished if I'm not doing anything to validate that the posted phone numbers are actually selling what they claim? How is that any different?

Originally posted by Zakharov:Thanks, I know what torrents are. Putting a tiny minority of .torrent files that point to legal downloads into a sea of .torrent files that point to copyrighted material does not constitute alternative uses. Plenty of sites host .torrent files. Perhaps you would like to tell me what distinguishes TPB from those sites? Where does TPB get its notoriety from since we're playing dumb here?

They got their notoriety for being loud and sarcastic with the government of Sweden.

the reality is that they provide a tracker and a search engine on their website. users upload both copyrighted and non-copyrighted works and use their tracker to connect with other users. those are the facts. they host NO copyrighted content and therefore are not making the files "available". that would be the uploader.

since nobody wants to spend the time or money to catch the uploader, they go after the easy target.

To prove it I'll use your analogy:

to obtain a gun illegally (in London, ON), go to the back alleys that run perpendicular to the front door of Solid Golds (strip club). There are usually a cpl dudes back there who could hook it up.

Does selling a CD for a discounted price of $0.99 constitute a case for making available for ridiculously low price? It's still money, but the original intention of the copyright holder was to sell it for 10 bucks. 0.99 is essentially free and a rip-off of the copyright holder....

Well kbhola, in most legal systems there exists the concept of an accomplice. You are in some regard legally responsible if you help plan a bank robbery, or help plan a murder, and so on. Providing information as you did above is not an issue since you and I are not collaborating to murder anyone. If we were actively collaborating to murder someone, and I went and actually executed our plan, you WOULD be legally responsible.

Once again it comes down to the question of whether TPB is an accomplice in copyright infringement. I say yes, because their primary purpose is to provide such information and assistance. You say no because the technology they use to do this is distributed and is used for legal purposes elsewhere.